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Marwari Sabha Pilakhwa Vs. Sri Kanhaya Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 629 of 1972
Judge
Reported inAIR1973All298
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 - Order 39, Rule 1; Uttar Pradesh Code of Civil Procedure (CPC) (Amendment) Act, 1970; Bengal Agra and Assam Civil Court Act, 1887 - Sections 3, 21, 21(1), 21(2), 21(3) and 22
AppellantMarwari Sabha Pilakhwa
RespondentSri Kanhaya Lal and ors.
Appellant AdvocateK.B.L. Gaur, Adv.
Respondent AdvocateR.K. Jain and ;S.S. Bhatnagar, Advs.
DispositionPetition dismissed
Excerpt:
.....injunction restraining the defendants opposite parties from interfering with the functioning of bhagwat prasad as the manager of the marwari intermediate college run by the marwari sabha pilakhwa pending their suit for a permanent injunction in the court of the munsif ghazia-bad. the above allegations and counter-allegations clearly show that there arc two factions in the body managing the college and there are two claimants for the office of managership, bhagwat prasad, the second plaintiff and kesho ram gupta, the third defendant. it may at worst deprive him of the managerial control for some time. there is nothing on record to show that kesho ram gupta is not a fit person considering his antecedents, ability and character in whose hands the affairs of the college would become..........as manager. against this order of the learned munsif the plaintiffs filed an appeal before the civil judge of ghaziabad who took the view on the material on record that the plaintiffs had a prima facie case and bhagwat prasad was not ousted from the office of managership. the learned civil judge by his order dated 16-9-1971 allowed the appeal and passed a temporary injunction to the effect that since bhagwat prasad has been acting as manager he should continue to act as such and no one will interfere with his management. the defendants then went up in revision to the district judge of meerut under the amended section 115 of the c. p. code which gives concurrent jurisdiction to the district. judge with the high court to entertain and hear a revision. this revision was heard by the.....
Judgment:

K.B. Asthana, J.

1. The plaintiff applicant M/s. Marwari Sabha Pilakhwa, a society registered under the Societies Registration Act, and Bhagwat Prasad, have filed this revision under Section 115 of the C. P. Code against a revisional order passed by the Additional District Judge, Meerut, refusing the grant of a temporary injunction restraining the defendants opposite parties from interfering with the functioning of Bhagwat Prasad as the manager of the Marwari Intermediate College run by the Marwari Sabha Pilakhwa pending their suit for a permanent injunction in the court of the Munsif Ghazia-bad.

2. Admittedly Marwari Sabha Pi-lakhwa runs and manages the Marwari Intermediate College, a secondary school recognised by the Board of High School and Intermediate Education, Uttar Pradesh. The provisions of the Intermediate Education Act and the Regulations made thereunder applied to the said college. Under the provisions of the said Act and the Regulations a scheme has been framed providing for the rules for management of the said college. Under the said scheme, admittedly Bhagwat Prasad was elected as the Manager of the Management Committee of the College at an election held on 13-6-1968 for a term of three years. Admittedly he worked in that office tilt 25-4-1971 when it is alleged that at a meeting of the Committee. Bhagwat Prasad was removed from the managership and was replaced by Kesho Ram Gupta, the third defendant, by a resolution passed at the meeting. Plaintiffs in their plaint alleged that the meeting which was held was collusive and illegal and Bhagwat Prasad was never removed. it was pleaded by the plaintiffs that new elections of the office-bearers of the Committee of management were duly held on 12-5-1971 at which Bhagwat Prasad was re-elected as Manager. The defendants denied in their written statement that any meeting was held on 12-5-1971 for electing new officer-bearers as alleged by the plaintiff. The defendants set up the case that at a meeting held on 15-5-1971 new elections were held at which Kesho Ram Gupta was formally elected as the Manager for a term of three years along with other office-bearers. The above allegations and counter-allegations clearly show that there arc two factions in the body managing the college and there are two claimants for the office of Managership, Bhagwat Prasad, the second plaintiff and Kesho Ram Gupta, the third defendant.

3. Bhagwat Prasad to secure his position commenced the suit seeking a relief of permanent injunction against the defendants who claimed to have been elected as the new office-bearers at the meeting held on 15-5-1971. Alleging that Bhagwat Prasad was in possession of his office an application was made for a temporary injunction pending the suit restraining the defendants from interfering with the functioning as manager of the college by Bhagwat Prasad. The learned Munsif on 15-5-1971, the day on which the suit was instituted, passed an ex parte order to the effect that in the meantime the parties shall maintain status quo in respect of the management. After notice to the defendants and hearing them the learned Munsif on 4-9-1971 dismissed the plaintiff's application for temporary injunction mainly on the finding that Bhagwat Prasad had been ousted from the office of managership on 25-4-1971 and Kesho Ram Gupta was in control of the management as Manager. Against this order of the learned Munsif the plaintiffs filed an appeal before the Civil Judge of Ghaziabad who took the view on the material on record that the plaintiffs had a prima facie case and Bhagwat Prasad was not ousted from the office of managership. The learned Civil Judge by his order dated 16-9-1971 allowed the appeal and passed a temporary injunction to the effect that since Bhagwat Prasad has been acting as Manager he should continue to act as such and no one will interfere with his management. The defendants then went up in revision to the District Judge of Meerut under the amended Section 115 of the C. P. Code which gives concurrent jurisdiction to the District. Judge with the High Court to entertain and hear a revision. This revision was heard by the learned Additional District Judge who found that the learned Civil Judge exercised his jurisdiction illegally and with material irregularity inasmuch as he omitted from consideration material evidence on record in arriving at his finding and proceeded in the matter against the welt established principles of grant of temporary injunction in interfering with the order of the trial Court who in its discretion refused to grant the temporary injunction. The revision was allowed, the order of the learned Civil Judge was set aside and the application of the plaintiff for temporary injunction stood rejected. It is in these circumstances that the plaintiffs invoked the jurisdiction of this Court under Section 115 of the C. P. Code.

3A. I have heard at some length Sri Brij Lal Gupta. leaned counsel appearing for the plaintiffs appellants, and Sri S. N. Kacker, learned counsel appearing for the defendants opposite parties; with the assistance of the learned counsel T have been taken through the relevant material on record. Having given my serious consideration to the learned arguments raised at the bar and the material on record, I have come to the conclusion that no case has been made out for interfering with the order of the learned Additional District Judge dismissing the application of the plaintiff for grant of temporary injunction.

4. Before I embark upon the discus-sion of the case on merits, I think it proper at this stage to dispose of an objection raised by Sri Gupta on behalf of the plaintiff applicants to the legality of the revisional jurisdiction exercised by the Additional District Judge. The learned counsel contended that under Section 21 of the Bengal, Agra and Assam Civil Courts Act, 1887 (Act No. XII of 1887) an appeal from any order of the Munsif lies to the District Judge and when a Civil Judge exercises the appellate jurisdiction then he would be deemed to be exercising the jurisdiction as a District Judge deriving authority from the District Judge who has the power to transfer the appeals which lie be-fore him to a Civil Judge under Section 22 of the Said Act, therefore, the District Judge cannot be the revising authority of a decision of a Civil Judge who while deciding the appeal was exercising power vesting in the District Judge.

5. But a subsidiary submission was made to the effect that under Section 21 of the said Act while an appeal lies to the District Judge from any order of the Munsif but so far as an Additional Judge is concerned under Sub-section (3) the appeals are only 'preferred' before him, therefore, the Additional District Judge can only receive the appeal when presented but cannot hear and decide it, hence it is always the District Judge who will decide the appeal under the scheme of Section 21 no matter the appeal is preferred before the Additional Judge or the Civil Judge with the consequence that the District Judge cannot revise any order passed in appeal as that would amount to revising his own order. This argument of the learned counsel involves giving different meanings to the phrase 'the appeal shall lie' and 'an appeal shall be preferred'. According to the learned counsel where an appeal lies to a court then that court entertains it, hears it and decides it but where an appeal is preferred to a court then it can only receive it when presented, but cannot hear and decide it. I think this argument of the learned counsel is devoid of all tenability. It is also destructive of the plaintiff's case, in whose favour a learned Civil Judge decided the appeal. It would be seen that under Sub-section (4) the appeal is to be preferred to a Civil Judge. If this contention of Sri Gupta is accepted then the Civil Judge too will have no jurisdiction |to hear and decide an appeal, the order passed by him in favour of plaintiff will be rendered void.

6. Under Section 21 of the said Act it appears to me that the two phrases 'an appeal shall lie' and 'an appeal shall be preferred' are synonymous. The phrase 'appeal shall be preferred' certainly is wider in its connotation than the phrase the 'appeal shall be received'. It is obvious, therefore, that the authority or court before which an appeal is to be preferred is not an authority or a court merely for the purpose of receiving it. Such court will have a wider jurisdiction. The Shorter Oxford English Dictionary gives to the word 'prefer', inter alia, a meaning 'to put something before anyone for acceptance; to lay a matter before any one formally for consideration, approval or sanction'. It is clear, there-fore, that when an appeal is preferred before an Additional Judge or a Civil Judge the appeal is being laid before him formally for consideration and sanction. I have no doubt in my mind that an Additional Judge or a Civil Judge before whom an appeal is preferred has jurisdiction to hear and decide it. Further this Act has been administered for almost a century now and no one has ever doubted that an Additional District Judge or a Civil Judge before whom an appeal is preferred under the provisions of this Act from any order or decree of the Munsif has jurisdiction to hear and decide it.

7. The contention that Civil Judge while hearing and deciding an appeal will be exercising his jurisdiction as a District Judge and the orders passed by him cannot be revised by the District Judge under the amended Section 115 of the C. P. Code, is fallacious as it ignores the true effect of Sub-section (4) of Section 21 of the said Act. Under Sub-section (4) of Section 21 the High Court may with the previous sanction of the State Government direct by notification in the official gazette that the appeals lying to the District Judge under Sub-section (2) from the decrees or orders of any Mun-sif shall be preferred to the court of such Civil Judge as may be mentioned in the notification, and the appeals shall thereupon be preferred accordingly. Section 21 of the said Act fixes and determines the forums of appeals. The District Judge, the Additional District Judge are the forums of appeals as provided under Sub-sections (1), (2) and (3) of the said section. Sub-section (4) creates an entirely distinct forum of appeal whenever a High Court with the previous sanction of the State Government directs by notification in the Official Gazette that certain classes of orders and decrees passed by the Munsif shall be appealable to the court of specified Civil Judge. A forum so created by the name of Civil Judge is distinct and different from the District Judge and Additional Judge found mentioned in Sub-sections (1), (2) and (3) of Section 21. It is therefore, not possible to hold that a Civil Judge who by notification in the Official Gazette is specified before whom the appeals are to be preferred from the orders or decree of Munsif is a District. Judge or an Additional Judge as envisaged in Sub-sections (1), (2) and (3) of the said section. Here again I may point out that almost a century of administration of the said Act has gone by and I am not aware that any such argument was ever raised that a Civil Judge specified by notification before whom appeals are to be preferred from the orders and decrees of the Munsif is nothing but the District Judge or Additional Judge himself when entertaining hearing and deciding such appeals. A reference to Section 3 of the Civil Procedure code would be apt. It lays down that for the purposes of the Code the District Court is subordinate to the High Court and every Civil Court of a grade inferior to that of a District Court and every court of Small Causes is subordinate to the High Court and District Court. Thus for the purposes of the Code the court of the Civil Judge would be subordinate to the court of the District Judge.

8. Sri Gupta then referred to the notification of the High Court issued with the sanction of the State Government specifying the Civil Judge of Ghaziabad before whom the appeals shall be preferred from the orders and decrees of the Munsif of Ghaziabad under Sub-section (4) of the said Act. The notification is published in Hindi and the phrase used is 'appeal dayar hogi'. It was contended that the word 'dayar' means 'file' and not 'shall be preferred' or 'shall lie'. This argument is mentioned by me only to be rejected. It is clear from the notification published in the Gazette that it was issued in exercise of the powers vesting in the High Court under Sub-section (4) of the Act. 'Appeal dayar hogi', therefore, will only mean 'the appeal shall be preferred' and nothing more.

9. Lastly it was suggested by Sri Gupta that a presumption be drawn that the appeal went before the court of the Civil Judge of Ghaziabad by an order of transfer passed by the District Judge, Meerut, under Section 22 of the said Act. This submission is also as much hollow as the other submis-sions discussed above. Under Section 22 of the said Act the District Judge is empowered to transfer the appeals pending before him. Once the Civil Judge of Ghaziabad was the specified forum before whom the appeals were to be preferred from the order of the Munsif Ghaziabad and in fact as the order sheet shows the appeal was directly preferred in the court of the Civil Judge, Ghaziabad, no occasion would arise of that appeal ever pending before the court of the District Judge. Section 22 of the said Act will not be attracted. Therefore, there cannot arise any presumption.

10. For the above reasons I hold that the Civil Judge of Ghaziabad being subordinate to the District Judge of Meerut within the meaning of Section 3 of the Civil Procedure Code any order passed by the Civil Judge of Ghaziabad would be revisable under the amended Section 115 of the C. P. Code by the District Judge or by the Additional District Judge duly authorised.

11. Now corning to the merits of the case, I find it difficult on the material on record to arrive at a prima facie conclusion as to who as Manager is in effective control of the administration of the college, the second plaintiff Bhagwat Prasad or the third defendant Kesho Ram Gupta? On behalf of both the contestants almost similar documentary evidence has been brought on record in the shape of returns, bills, receipts and letters. So far so that early in May 1971 the Principal of the College who wanted to leave station submitted similar application for permission to Bhagwat Prasad as Manager and also to Kesho Ram Gupta as manager of the College. That shows that even the principal who was at the spot and intimately concerned with the affairs of the college, did not know or at any rate was not sure who was really in control of the office. It is the case of the defendants that Bhagwat Prasad was displaced from managership as a sequel to the resolution passed on 25-4-1971, while plaintiff's case is that the alleged meeting held on 25-4-1971 was collusive and illegal and he was never removed from office or lost control thereof. As pointed out above, unless a thorough scrutiny is made of the material on record and evidence examined, it is not possible for a court to come to a definite finding. The onus lay on the plaintiff to establish a prima facie case. One of the main ingredients for establishing the prima facie case was that the second plaintiff Bhagwat Prasad was in effective control as Manager of the Managing Committee of the college on the date when the suit was filed. He, as found by the learned Judge of the court below, has not been able to discharge that onus. In coming to that conclusion the learned Additional District Judge did not act illegally or with material irregularity in the exercise of his jurisdiction. The High Court under Section 115 of the C. P. Code can interfere with the order of the learned Additional District Judge only when it were established that the order passed was without jurisdiction or in refusal of exercise of the jurisdiction vested or was passed illegally or with material irregularity in exercise of jurisdiction. The learned counsel for the plaintiff applicant has not been able to satisfy me that the impugned order of the learned Additional District Judge suffered from any jurisdictional errors envisaged under Section 115 of the C. P. Code.

12. I even do not find that by refusing a temporary injunction to the plaintiffs pending their suit any prejudice would be caused to the plaintiffs, or an irreparable injury will come to the second plaintiff Bhagwat Prasad if an interim injunction was not granted. It may at worst deprive him of the managerial control for some time. The first plaintiff, the Marwari Sabha, Pilakhwa, the parent body, in fact has nothing to lose if an interim injunction were not granted. Whether the College run by the Sabha is to be managed by one set of members or by another set of members hardly will prejudicially affect the interest of the Sabha. It if not the case that some persons have entered the management who are outsiders and do not belong to the membership of the Sabha. The competition appears to be between two individuals, namely, Bhagwat Prasad and Kesho Ram Gupta. There is nothing on record to show that Kesho Ram Gupta is not a fit person considering his antecedents, ability and character in whose hands the affairs of the college would become unsafe. The second plaintiff in this suit is not seeking vindication of any of his personal rights to any tangible property which will be harmed unless the court steps in to protect Bhagwat Prasad against that injury. So even on considering the case from this point of view, I do not find any justification for the court at this stage stepping in by making orders. To my mind the interference by the court at this stage instead of simplifying the matters would result in complicating them. A court should always be slow in passing interim orders in cases where the management of educational or other welfare institutions is concerned. The paramount interest should be that of the institution which should always prevail. Here there is nothing on record to show that the affairs of the Sabha or of the College run by it would be prejudicially affected in any manner unless the court protects the Sabha or the college by passing immediate orders. No case, is, therefore, made out for grant of any interim injunction.

13. The second plaintiff, if he is in effective control as asserted by him does not need any interim protection as the authorities under the Intermediate Education Act and the Regulations are bound to deal with him, but if the authorities that be, are satisfied that it is the newly elected office-bearers who are in effective control and deal with them, this Court ought not to interfere as the educational authorities are not parties to this suit and that will also be one of the reasons that the Court should not grant an interim injunction. The plaintiff when he succeeds and establishes his rights in the suit will be entitled to a decree of permanent injunction. It would be in interest of all the parties concerned that the hearing of the suit be expedited and a decision be given at an early date.

14. This revision is dismissed. In the circumstances of the case, I make no order for costs.

15. The record be sent back to the court below forthwith.


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